Secretary of State Brewer’s letter criticizing Governor Napolitano’s veto of Senate Bill 1186 is unfortunate. But her refusal to support legislation that protects the voting rights of lawfully registered Arizonans is stunning. [Veto of S1186: Governor Shouldn’t Block Will Of Voters, May 27 issue]

It is the secretary’s job to ensure that Arizona’s elections are fair and to safeguard the right to vote for all lawful Arizonans.

That’s why her continued effort to discount the votes of Arizonans who lose or forget their IDs is so baffling. Think how you’d feel if on Election Day, you realized your ID had been lost or stolen. Would you expect that you couldn’t vote at all≠ That’s what Secretary Brewer’s bill would do.

Fortunately, the federal Help America Vote Act (HAVA) guarantees that voters who have lost, forgotten or have had identification stolen must be given a provisional ballot. That ballot will be counted only upon confirmation that the voter was actually eligible to cast it. Otherwise, it is discarded.

In her flawed analysis of the effects of S1186, Secretary Brewer referred to an April 15, 2005, letter from Sheldon Bradshaw, a former Department of Justice (DOJ) official. In the letter, Bradshaw set forth what he candidly described as a “not binding” opinion about state provisional ballots.

The Bradshaw letter is unusual for many reasons. First, it conflicts with the plain language of HAVA, which unequivocally states:

“If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election for federal office, but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote, such individual shall be permitted to cast a provisional ballot…”

Second, it is contrary to other DOJ letters and legal arguments on this subject. For example, Assistant Attorney General R. Alexander Acosta (who actually works at DOJ and heads the Civil Rights Division and is a more senior DOJ official than Mr. Bradshaw was) has written: “Under [HAVA] state and local election officials must permit any individual whose name does not appear on the official registration list for the polling place or whose eligibility to vote is called into question to cast a provisional ballot…”

Finally, not only does Mr. Bradshaw’s letter conflict with his own previous legal arguments on this point; it is also unclear whether Mr. Bradshaw was even authorized to write it. According to the United States Food and Drug Administration (FDA), Mr. Bradshaw began working full time for the FDA on April 1, 2005 — 15 days before he authored the DOJ letter and five days before such a letter was even requested by Secretary Brewer.

In any event, the policy set forth in HAVA is sound: lawful voters should not be denied the right to vote simply because they lose, forget or have their identification stolen. Instead, they should get a provisional ballot until their lawful voting status is verified.

The governor’s veto in no way impairs the enforcement of Proposition 200. Proposition 200 did not change current Arizona law that allows provisional ballots; in fact, it didn’t even mention provisional ballots. Proposition 200 can and is being implemented without disrupting HAVA.

Lawful Arizona voters who forget their identification – or whose identification has been lost or stolen – still deserve the right to cast a provisional ballot to be counted if and when their identity has been verified. Denials of provisional ballots are unwise, serve no legitimate voter security function, and will inevitably lead to denials of the right to vote by lawful Arizonans.

Secretary Brewer’s focus should correctly be on preserving rather than denying that simple right. —

Tim Nelson, General Counsel, Governor’s Office